Citation NR: 9626747
Decision Date: 09/25/96 Archive Date: 10/03/96
DOCKET NO. 95-15 168 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to service connection for arthritis.
2. Entitlement to an increased evaluation for residuals of a
shell fragment wound to the back (muscle group XX), currently
evaluated as 20 percent disabling.
3. Whether new and material evidence has been received to
reopen a claim for service connection for bilateral hearing
loss and tinnitus.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
ATTORNEY FOR THE BOARD
Todd A. Sinkins, Associate Counsel
INTRODUCTION
The appellant served on active duty from May 1950 to June
1953, and is a recipient of a Combat Infantryman Badge and
Purple Heart Medal. This action comes to the Board of
Veterans’ Appeals (the Board) from a September 1993 rating
decision of the Department of Veterans Affairs (VA) Los
Angeles Regional Office (RO) which denied service connection
for arthritis, an increased evaluation for residuals of a
shrapnel wound to the back, and declined to reopen a claim of
service connection for bilateral hearing loss with tinnitus.
Additionally, the Board notes that the RO did not consider
referral of the issue of entitlement to an increased
evaluation for residuals of a shell fragment wound of the
back to the Chief Benefits Director or Director, Compensation
and Pension Service for the assignment of an extraschedular
rating under 38 C.F.R. § 3.321(b)(1) (1995). In light of
Floyd v. Brown, 9 Vet.App. 88 (1996), the Board does not have
jurisdiction to address the provisions of 38 C.F.R. §
3.321(b)(1) in the first instance.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he was subjected to acoustic
trauma while in combat when shells exploded nearby. He
claims that his current bilateral hearing loss with tinnitus
originated with the acoustic trauma in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been submitted to reopen a claim of service connection
for bilateral hearing loss with tinnitus.
FINDINGS OF FACT
1. Service connection for bilateral hearing loss and
tinnitus was denied by November 1990 RO decision; no appeal
therefrom was initiated by the appellant and there was no RO
denial of an attempt to reopen the claim until the
September 1993 RO decision from which this case was appealed.
2. The evidence received since the November 1990 RO denial
is either cumulative or repetitive, and it does not raise a
reasonable possibility of changing the decision denying
service connection for bilateral hearing loss and tinnitus,
when that evidence is viewed in the context of all of the
evidence of record, both old and new
CONCLUSIONS OF LAW
1. The unappealed November 1990 RO decision, denying the
appellant’s claim of service connection for bilateral hearing
loss and tinnitus, is final. 38 U.S.C.A. § 7105 (West 1991).
2. New and material evidence has not been received to reopen
a claim of entitlement to service connection for bilateral
hearing loss and tinnitus. 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156(a) (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The well groundedness requirement shall not apply with regard
to reopening disallowed claims and revising prior final
determinations. Jones v. Brown, 7 Vet.App. 134 (1994).
The RO decision in November 1990 denied service connection
for bilateral hearing loss and tinnitus. That decision is
final, in the absence of a timely filed appeal, and the
appellant’s claim of service connection may be reopened if he
submits new and material evidence. See 38 U.S.C.A. § 5108,
7105; Evans v. Brown, No. 93-1220, slip. op. at 17 (U.S. Vet.
App. Aug. 1, 1996); 38 C.F.R. § 3.156(a). If the claim is
reopened, then the VA shall readjudicate the claim based on a
review of all of the evidence, both old and new. Manio v.
Derwinski, 1 Vet.App. 140 (1991).
“New and material evidence” is defined at 38 C.F.R.
§ 3.156(a) as:
. . . evidence not previously submitted to agency
decision makers which bears directly and
substantially
upon the specific matter under consideration, which
is
neither cumulative nor redundant, and which by
itself or
in connection with evidence previously assembled is
so
significant that it must be considered in order to
fairly decide
the merits of the claim.
New evidence is “not that which is merely cumulative of other
evidence on the record.” Colvin v. Derwinski, 1 Vet.App.
171, 174 (1991). Material evidence is that which is relevant
and probative of the issue at hand and presents a reasonable
possibility that the new evidence, when viewed in context of
all of the evidence, both new and old, would change the
outcome of the claim. Smith v. Derwinski, 1 Vet.App. 178
(1991); Colvin, 1 Vet.App. at 174. In determining whether
evidence is new and material, the credibility of the evidence
is presumed. Cox v. Brown, 5 Vet.App. 95, 98 (1993); Justus
v. Principi, 3 Vet.App. 510, 513 (1992).
The threshold for normal hearing is from 0 to 20 dB, and
higher threshold levels indicate some degree of hearing loss.
Hensley v. Brown, 5 Vet.App. 155, 158 (1993). Impaired
hearing will be considered to be a disability for VA service
connection purposes when the auditory threshold level in any
of the frequencies 500, 1,000, 2,000, 3,000 and 4,000 Hertz
is 40 decibels (db)or greater; or the thresholds for at least
three of these frequencies are 26 db or greater; or speech
recognition scores are less than 94 percent. 38 C.F.R.
§ 3.385. Sensorineural hearing loss will be service
connected, though not otherwise shown in service, if the
condition becomes manifest to a compensable level within one
year from the date of separation from active duty. 38 C.F.R.
§§ 3.307, 3.309. However, the U.S. Court of Veterans Appeals
(the Court), in Hensley, 5 Vet.App. at 160, indicated that §
3.385 does not preclude service connection for a current
hearing disability where hearing was within normal limits on
audiometric testing at separation from service. As stated by
the Court, "[i]f evidence should sufficiently demonstrate a
medical relationship between the veteran's inservice exposure
to loud noise and his current disability, it would follow
that the veteran incurred an injury in service; the
requirements of § 1110 would be satisfied." Id. at 160
(citing Godfrey v. Derwinski, 2 Vet.App. 352 (1992)).
In addition, in the case of any veteran who engaged in combat
with the enemy in active service with the military, naval, or
air organization of the United States during a period of war,
campaign, or expedition, the Secretary shall accept as
sufficient proof of service connection of any disease or
injury alleged to have been incurred in or aggravated by such
service, satisfactory lay or other evidence of service
incurrence or aggravation of such injury or disease, if
consistent with the circumstances, conditions, or hardship of
such service, notwithstanding the fact that there is no
official record of such incurrence or aggravation in such
service and, to that end, shall resolve every reasonable
doubt in favor of the veteran. Service connection of such
injury or disease may be rebutted by clear and convincing
evidence to the contrary. 38 U.S.C.A. § 1154(b).
Old Evidence
The pertinent evidence of record at the time of the November
1990 denial of service connection for bilateral hearing loss
and tinnitus included a May 1950 enlistment medical
examination record, reporting 15/15 bilateral hearing on
whispered voice testing, and a May 1953 separation medical
examination report, reflecting 15/15 bilateral hearing on
whispered voice testing. Also of record was an April 1990 VA
outpatient treatment record in which the treating physician
noted a history of left ear hearing loss since 1951, and
noted a clinical assessment of tinnitus and hearing loss.
The appellant was also afforded a VA audiological evaluation
in September 1990, the results of which were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15db
15db
25db
55db
65db
LEFT
20db
25db
55db
60db
70db
Speech recognition was noted as 94 percent correct for the
right ear and 86 percent correct for the left ear. The
appellant’s bilateral hearing was described by the
audiologist as a constant bilateral moderate to severe high
pitched ringing tinnitus since an artillery attack in 1951,
and bilateral moderate high frequency sensorineural hearing
loss.
Additional Evidence
Subsequent to the November 1990 RO decision denying service
connection for bilateral hearing loss and tinnitus, the RO
has received a January 1992 VA outpatient treatment record
reflecting a history of decreased left ear hearing since
trauma in 1951. The RO has also received a June 1990 VA
audiological test report, the results of which were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15db
15db
25db
60db
60db
LEFT
15db
25db
50db
60db
70db
A June 1994 VA audiological test report reflects the
following results:
HERTZ
500
1000
2000
3000
4000
RIGHT
20db
25db
35db
60db
70db
LEFT
25db
35db
65db
70db
80db
Speech recognition was noted as 92 percent correct for the
right ear and 64 percent correct for the left ear. The
treating physician noted that puretone thresholds for the
right ear revealed a mild hearing loss for 250-500 hertz(Hz)
sloping to a mild to moderately severe loss for 1000-8000 Hz,
and puretone thresholds for the left ear revealed mild
hearing loss for 250-1000 Hz decreasing to a moderate to
severe hearing loss from 2000-8000 Hz. Bilaterally,
tympanograms were within normal limits, acoustic reflex
thresholds were present both ipsilaterally and
contralaterally, and word recognition scores were good at the
60 and 80 db hearing level.
Analysis
The evidence received since the November 1990 RO decision is
cumulative of evidence already considered by the RO at the
time of its November 1990 denial. As such, it is not “new”
evidence. The June 1990 and June 1994 VA audiological test
results reflect a bilateral hearing loss, just as the
September 1990 VA audiological examination reflected a
bilateral hearing loss, established by audiological testing.
Likewise, the evidence previously of record, as well as the
additional evidence, reflects that the appellant claimed a
history of left ear hearing loss since service. Yet, there
is no medical evidence linking the appellant’s current
bilateral hearing loss to service, and there is no continuity
of symptomatology from the time he left service to the
present that would indicate that any current hearing loss was
incurred in service. The Board accepts as true that the
appellant was subjected to acoustic trauma due to artillery
fire in service; however, there is no evidence that the in-
service acoustic trauma resulted in his current hearing loss.
Further, the additional evidence does not reflect a diagnosis
of tinnitus. In addition, the Board has specifically
considered the appellant’s contention that his current
bilateral hearing loss and tinnitus is related to service,
but as he is a layman, he is not competent to offer an
opinion as to medical causation or diagnosis. Grottveit,
5 Vet.App. at 93; Espiritu, 2 Vet.App. at 494. Thus, none of
the additional evidence, when examined in context of all of
the evidence of record, both old and new, presents a
reasonable possibility of changing the outcome of the claim.
As new and material evidence has not been submitted in this
case, the claim is not reopened, and the November 1990 RO
decision remains final. No further analysis of the
application to reopen the claim of service connection for
bilateral hearing loss and tinnitus is appropriate. Kehoskie
v. Derwinski, 2 Vet.App. 31 (1991).
ORDER
As new and material evidence has not been submitted, the
application to reopen a claim of entitlement to service
connection for bilateral hearing loss and tinnitus is denied.
REMAND
The Board finds that the appellant’s remaining claims on
appeal are well grounded within the meaning of 38 U.S.C.A.
§ 5107(a); that is, plausible claims have been presented.
Murphy v. Derwinski, 1 Vet.App. 78 (1990). Regarding his
claim of service connection for arthritis, a postservice VA
diagnosis of arthritis, coupled with evidence of trauma in
service, is sufficient to conclude that his claim of service
connection may be well grounded. King v. Brown, 5 Vet.App.
19 (1993). As to the claim for an increased evaluation for
residuals of a shell fragment wound to the back, an
allegation of increased disability is sufficient to establish
a well-grounded claim seeking an increased rating. Proscelle
v. Derwinski, 2 Vet.App. 629 (1992). In this case, the
appellant's evidentiary assertions concerning the severity of
his service-connected shell fragment wound to the back (that
are within the competence of a lay party to report) are
sufficient to conclude that his claim is well grounded.
The VA has a duty to assist the appellant in the development
of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The
duty to assist the veteran in obtaining and developing
available facts and evidence to support his claim includes
obtaining an adequate VA examination. This duty is neither
optional nor discretionary. Littke v. Derwinski, 1 Vet.App.
90 (1990). The fulfillment of the statutory duty to assist
includes conducting a thorough and contemporaneous medical
examination, one which takes into account the records of
prior medical treatment, so that the evaluation of the
claimed disability will be a fully informed one. Green v.
Derwinski, 1 Vet.App. 121, 124 (1991).
In this case, while the appellant has a current VA clinical
assessment of arthritis, there is no medical opinion of
record concerning the etiology of the appellant’s arthritis.
Thus, a VA medical examination containing an opinion as to
whether the appellant’s arthritis is related to trauma in
service is necessary.
Further, the Court has held that where the veteran claims
that a disability is worse than when originally rated, and
the available evidence is inadequate to evaluate the current
state of the condition, the VA must provide a new
examination. Olsen v. Principi, 3 Vet.App. 480, 482 (1992),
citing Proscelle, 2 Vet.App. at 632. Concerning the
appellant’s service-connected residuals of a shell fragment
wound to the back (muscle group XX), he was most recently
afforded a VA medical examination in August 1990, two years
prior to his claim for an increased evaluation for residuals
of a shell fragment wound to the back. In addition, the
Court has held that when a diagnostic code provides for
compensation based solely upon limitation of motion, the
provisions of 38 C.F.R. §§ 4.40 and 4.45 (1995) must also be
considered, and that examinations upon which the rating
decisions are based must adequately portray the extent of
functional loss due to pain “on use or due to flare-ups.”
DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Because the
criteria currently used to evaluate the appellant’s residuals
of a shell fragment wound in this case is Code 5320, based
partially on range of motion, the Board is persuaded that the
Court’s decision in DeLuca may have application to this
appeal.
In light of the foregoing, this case is REMANDED for the
following action:
1. The RO should contact the appellant
to determine the names, addresses, and
approximate dates of all treatment he
received for his arthritis and shell
fragment wound to the back since March
1991. After obtaining any necessary
releases, the RO should obtain for
inclusion in the claims folder copies of
such treatment records (not already of
record).
2. The appellant should be afforded a VA
orthopedic examination to determine the
nature and etiology of any arthritis
found. The claims folder should be made
available to the examiner for review in
conjunction with the examination. All
indicated testing, including X-ray
studies, should be conducted and the
results reported in detail. A definitive
diagnosis is imperative. The examiner
should be requested to provide an opinion
as to whether any arthritis found is
causally related to service. If any of
the foregoing cannot be determined, then
that should be indicated for the record.
3. The appellant should be afforded a VA
orthopedic examination to determine the
nature and severity of his service-
connected residuals of a shell fragment
wound to the back (muscle group XX). The
claims folder should be made available to
the examiner for review in conjunction
with the examination. All necessary
testing, including X-ray studies, should
be conducted and the results reported in
detail. The examiner should be requested
to provide an opinion as the severity of
the appellant’s functional impairment due
to residuals of his shell fragment wound,
including the degree of limitation of
motion due to pain, supported by adequate
pathology, and evidence of weakened
movement. In addition, the examiner is
requested to set forth, for the record,
what constitutes full range of spinal
motion and to specifically note any
objective limitation of such motion.
4. Thereafter, the case should be
reviewed by the RO, including
consideration of whether 38 C.F.R.
§§ 4.40 and 4.45 apply, and the RO should
specifically document consideration of
38 C.F.R. § 3.321(b)(1). See Floyd, 9
Vet.App. at 94 (the Board is precluded
from assigning an extraschedular rating
in the first instance).
If the benefits remainingon appeal are not granted, the
appellant and his representative should be provided a
supplemental statement of the case and afforded an
opportunity to respond thereto. The case should then be
returned to the Board for further appellate consideration.
J. F. GOUGH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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